A Dark Day for International Justice: ICC Office of the Prosecutor decides not to open investigations into situation of Palestine

The
Palestinian Centre for Human Rights (PCHR) wishes to express its extreme
disappointment following the decision
by the Office of the Prosecutor at the International Criminal Court (ICC) not
to open an investigation in the situation Palestine. This situation has been
under examination by the Court for more than 3 years; in response to the
suspected commission of grave war crimes and possible crimes against humanity
in the context of Israel’s 27 December 2008 – 18 January 2009 offensive on the
Gaza Strip (Operation ‘Cast Lead’), Palestine lodged a declaration recognizing
the jurisdiction of the International Criminal Court in accordance with Article
12(3) of the Court’s Statute on 22 January 2009.

Following
all parties’ provenfailure
to fulfil their obligations to effectively investigate the crimes committed in
the context of Operation Cast Lead, the ICC represented the most appropriate
forum to pursue accountability. This was in fact one of the key recommendations
of the UN Fact-Finding Mission on the Gaza Conflict, which triggered a complex
(and as yet uncompleted) follow-up process at the UN level.

The
conclusions of the UN Fact-Finding Mission regarding the suspected commission
of international crimes during Operation Cast Lead were substantiated by a
number of reports from independent human rights organisations, such as Human
Rights Watch, Amnesty International and FIDH, as well as the Report of the
Fact-Finding Commission mandated by the Arab League. The Office of the
Prosecutor of the ICC received hundreds of complaints and requests by victims
of the attacks on the Gaza Strip seeking the urgent opening of independent
investigations at the international level. PCHR and its partners submitted
numerous case files on victims’ behalf to the Office of the Prosecutor.

PCHR
believes that the ICC Prosecutor has completely failed to address this issue in
an appropriate manner.

The
admissibility question before the Court – whether Palestine could be considered
a State – was unquestionably a difficult one. However, a number of convincing
arguments were presented, including that Palestine can be considered a
State at a minimum for the purposes of the Rome Statute of the International
Criminal Court.

PCHR
believes that the purpose of the Office of the Prosecutor is to pursue
accountability, and to act in the interests of universal justice. The ICC
Prosecutor, rather than unilaterally deciding on the admissibility of such
investigations, should have immediately referred the question to the Assembly
of the States Parties. The two pages decision of the 3 April 2012 indeed
acknowledges this point:

‘The
Rome Statute provides no authority for the Office of the Prosecutor to adopt a
method to define the term “State” under article 12(3) which would be at
variance with that established for the purpose of article 12(1).’

The
Prosecutor’s decision to act unilaterally – without referring the issue to the
Pre-Trial Chamber, the most appropriate body – and the unacceptably long time
taken to come out with such a non-conclusive, almost interlocutory decision,
raises the suspicion that the Prosecutor was acting not in the interests of
justice, but rather on the basis of political considerations. It is hard to
escape the feeling that the victims and their representatives were deliberately
deceived.

PCHR
calls upon Palestine to immediately deposit its instrument of accession to the
Rome Statue of the International Criminal Court to the Secretary-General of the
United Nations.

PCHR
also calls for other States parties to refer the situation Palestine to the
ICC.

Most
importantly PCHR calls for all UN bodies, and in particular the UN General
Assembly to act consistently in the interests of justice and to conclude the
so-called ‘Goldstone process’, by bringing the issue to the Security Council so
that it may refer the situation in Israel and Palestine to the ICC.